Whistleblowers and Safety at Work: An Analysis of Section 11(c) of the Occupational Safety and Health Act by Emily A. Spieler :: SSRN

Because the Occupational Safety and Health Administration (OSHA) lacks sufficient resources to enforce the OSH Act effectively in all workplaces, OSHA must rely on workers to bring hazardous conditions to the agency’s attention. Section 11(c) of the Act is designed to protect workers who face retaliation because of safety-related activities. This article provides an analysis of this provision, including a review of administrative interpretations, data on cases that are processed by OSHA, and a summary of the remarkably sparse litigation under this statutory section. The article then compares Section 11(c) to other whistleblower laws that are investigated by OSHA and explores the statute’s troubling weaknesses. Of these weaknesses, the most important is that complainants have no right to pursue a claim on their own after exhausting administrative remedies, and therefore must rely on the Solicitor of Labor to file claims in federal court. A very short statute of limitations and relatively heavy burden of proof for complainants further weaken the effectiveness of this law. While common law or state remedies may be available to employees facing retaliation in some states, the federal statute is a key component of the federal occupational safety and health regulatory regime, and it is in need of amendments that would make it consistent with the stronger whistleblower laws that have been enacted since 1970. In the alternative, OSHA preemption does not preclude states from extending legal protections to safety whistleblowers.